Norway to probe Sony's PS3 Linux 'downgrade'

A government agency in Norway has reported Sony to the Consumer Ombudsman after floods of complaints over removal of "Other OS" functionality from PlayStation 3 consoles. Norway's Consumer Council claims Sony breached the Norwegian Marketing Control Act, by withdrawing a key feature after sale. It says Sony's terms of service …

[Anonymous Coward]

And the case will fail there as it has failed everwhere else.

The T&C that users agreed to allowed it.

Added to that the fact that the only reason it was removed was because hackers were using it to compromise the security of the console, then it's a surefire bet that it will get thrown out at the first state.

Nobody cared about OtherOS and Linux when it was there, they only complain now it's gone. When it was there, it was gimped and almost totally useless.

[Chad H.]

Nobody....

Except the homebrew scene, or those looking for cheap computing power to run models, or a cheap Bly ray media centre....

[SuperTim]

Unfair contracts....

In the UK, the unfair contracts rule can apply. If the end user HAD to agree T+Cs in order to continue to use one feature (online gaming) and therefore lost the other feature (Other OS) then that would be construed as unfair. $ony gave the user no way if keeping their previously promised features.

[Paul 77]

Not just gaming...

It wasn't just gaming that needed the firmware update to work. The LoveFilm program wouldn't work without the update, which is why we ended up doing it.

[Anonymous Coward]

The Article

seems to suggest that they are looking to see whether the T&C's (which as you say allowed it) are fair and legal.

If not, then they are irrelevant.

You can agree to a set of T&Cs containing "You agree that if you Distribute this software without permission, we may behead you", doesn't mean the developer actually has the right to set or enforce that particular term.

As I understood it, copyright infringement was almost impossible on the PS3 before Sony pissed people of by removing OtherOS. Unless I'm remembering wrongly, GeoHotz expanded upon some work that was done by another group so that people could use Linux.

The PS3 was widely sought after because of it's OtherOS functionality, the Cell processor means it was good for quite a range of research. Those using it for that can still do so as long as they don't want to also use it for Gaming. Pure Gamers won't even have noticed the change, it's those in the middle that have got stuck.

I'm not saying it won't be thrown out though, I don't know much about Norwegian law so all I can really say on that is that I hope it isn't (despite not having a PS3, I'd rather not see companies think they can get away with such behaviour).

[bolccg]

As the article says

"It says Sony's terms of service are unreasonable and leave the consumer without any legal protection."

So the T&C are themselves at issue.

[Loyal Commenter]

Just because something is in the T&Cs doesn't necessarily make it legally binding

If the T&Cs violate local laws, they can be termed inapplicable (depending on the legal system of your country of residence, mileage may vary, etc.). For instance, in the UK, there is (theoretically) quite strong protection against unfair and misleading contract terms.

IANAL, etc.

[Anonymous Coward]

(titled)

You can say what you want in your T&Cs (e.g. I will take a pound of your flesh, and your firstborn), but if those terms are "unfair" to a consumer then they may as well not exist.

I haven't read anything about hackers using otherOS to compromise the security of the console, and recent events would seem to suggest that removing it didn't even matter. Others may even say that the removal of OtherOS is what prompted some to work out how to sign things to run them on it.

As for uses of OtherOS, I've seen photos of rooms of PSs networked and number-crunching away on various tasks (e.g. protein folding, material sciences particularly superconduction), using the OtherOS option to run software.

Now there may be an issue that Sony sold the PS3s at a loss, expecting to make up for it with the exhorbitant prices of the games. If that is the case, then it's a business gamble gone wrong, but no excuse to deactivate old consoles.

[Fatman]

RE:...Sony sold the PS3s at a loss.....

I would not doubt that. It is the old `razor blade` strategy that Gillette cooked up. Sell the handles cheap and screw buyers on the blades. Didn't some printer manufacturers try that one, too???

The problem here, is going to be the patchwork of differing national laws regarding sale of goods. Especially goods that incorporate any software or modifiable firmware, that can be subsequently `dumbed down` by its manufacturer.

Putting the screws to companies like Sony (I still do not forgive them for their `rootkit infected CD's`) is not going to be easy.

[The BigYin]

@AC

"Nobody cared about OtherOS and Linux when it was there"

Really? Ever heard of the United States Air-Force (to name just one entity)? They cared rather loudly.

[westlake]

The one-off.

>>Really? Ever heard of the United States Air-Force (to name just one entity)? They cared rather >>loudly.

The PS3 based HPC cluster doesn't need a firmware upgrade - what it needs is 2,000 or so loss-leader PS3 "Fat" consoles purchased at the wholesale price.

Expecting Sony's consumer-products and entertainment divisions to permanently subsidize your military research projects is idiotic.

You get one bite of the apple.

Then it is back into the real world where you pay HPC prices for HPC capable hardware.

[MAPINGUARI]

USAF may care about OtherOS....

....but I don't think they would be particularly fussed about losing access to Playstation Network

[jonathanb]

Maybe not

Did you agree to the T&C before or after buying the Playstation that was advertised as having this feature?

[Alex.Red]

US AFRL cares (HPC cluster for $2M bucks)

Please, do not spread FUD ;-)

Read below:

http://www.hpcwire.com/blogs/Air-Forces-PS3-Condor-Cluster-Takes-Flight-111297414.html

[ukuser]

hackers

yep all those scientist hackers using the other os to link PS3's together for the good of humanity was just too much for sony to take as they wouldnt get any software sales from them customers and sony couldn't charge extortionate amounts of monies for supacomputers as ppl could make em on the free!

[bazza]

not necessarily

Europe's a lot better than the US about having strong consumer protection laws. It's the norm that contractual terms and conditions cannot override national law, even if you've signed up to them. If the Norwegians have a law saying that such practises are unreasonable I see no reason why Sony would win. And if they lose, they'll probably have to pay up or back down. And most legal codes, perhaps even in the US, say that you can do anything you like (such as running Linux) to property that you own.

And as for people caring about OtherOS, you're clearly ignorant of the not entirely surprising widespread use throughout academia of PS3s to get significant computing power on the cheap. Did the academic experience pass you by thus causing you to be unaware of this?

Plenty of other commentators have previously pointed out that Sony's current woes have largely been brought about as a direct result of them taking away OtherOS.

[asdf]

legal != customer goodwill

Whether a company can legally do something (which Sony crosses all the time - see rootkit fiasco) and whether they should do something are two different questions. Perhaps Sir Stringer's reign at Sony has much to do with the goodwill hit and Sony selling 100 million less PS3 than PS2s. Not to mention as well as losing billions. Sony hardware used to be cutting edge now its just overpriced DRM vendor locked in crap. They will always have fanbois but unlike Apple not enough to keep them on top.

[Chigaimasmaro]

hmmm

Alright, little troll... time for your nap... its OK... we'll find a nice bridge from which you can terrorize people from.

this is only an issue because Sony removed the OtherOS that people were using.

[Matt 21]

About time

too!

[Anonymous Coward]

Nice to see there is a consumer affairs authority that still sides with the consumer.

words and that.

[CheesyTheClown]

Damn Straight and now we'll lose PS3 also!

Last time this consumer group took on someone, it was Apple. They went after Apple for unfairly locking users into their DRM system therefore making it so that if you buy music from their iTunes music store, then you'd be forced to use an Apple device to play it. This was before Apple dropped DRM on music of course.

The result was, the courts ruled it was illegal for Apple to lock users in that way. BIG VICTORY!. As a result, there are countries all over the world (especially Norway) who will never receive any form of other media that can't be "protected' by a DRM system.

So NO TV shows.

So NO Movies

So NO Music Videos

So NO in-copyright eBooks

So NO Norwegian audio books (Apple delivers English ones because they're actually coming from Amazon I think).

When you have a country that has a total of 150,000 prospective customers who are likely to provide you an average of $30-$70 per year profit each, it's just too damn hard to justify having an entire legal team on staff to try and reach agreements. Therefore, they'd rather just abandon the market and let us use the laws (that protected DVD Jon) to just copy our own DVDs and TV shows to the iPhones. Let it be the studios problems.

As for Sony, well, I'd imagine they have a total market of 30-50k units overall in Norway. If you look at the PS3 game section in the store, it's the smallest and saddest looking. It would take an AWFUL lot of game sales in a year for Sony to give a shit whether they stay or go. As an example, it wasn't until mid last year that Sony bothered to sell Vaio computers in Norway. They didn't see the profit in having a support staff available here in Norway.

[Bassey]

Problem with their defence

I see a problem with Sony's presumed defence. If, as anticipated, they argue they removed the feature because it was being used to compromise security, then they are arguing that the console was not fit for purpose as sold. Seems a strange defence, saying "We had to remove an advertised feature because it didn't work properly and we couldn't fix it".

[Mark 65]

Other problem

"being used to compromise security" is also a problem phrase for me. It's a console that I bought and own and unless I'm compromising it's safety (i.e. electrical etc) it should be mine to do with as I please. I can only see their side "potentially" from a warranty perspective but elsewise they should just get f*cked.

[Red Bren]

@Bassey

If Sony's argument is accepted, could the Norwegian Consumer Council then force Sony to do a complete product recall with full refunds?

[Charles 9]

Sony: We never advertised OtherOS.

THAT will be Sony's defence: that OtherOS was simply a bonus thing, an easter egg. Unless people present print or otherwise legally-enforceable advertisements from Sony itself that specifically mention OtherOS, then Sony can deny that OtherOS was ever a feature of the PS3. This would likely defeat the "fit for purpose" argument (because there was never a purpose for which to be fit) and the "feature removal" argument (because, technically, it wasn't advertised as a feature).

[Arctic fox]

Arctic calling, arctic calling.....

You will find that my homeland takes consumer protection very seriously. I do not claim that Sony cannot possibly win this one but they are really going to have to prove that what they did was reasonable. The implicit assumption in much of our consumer protection law here (although it is not so explicit as that) is that the producer is almost certainly trying on and it is up to him to prove differently. If it is the case that what Sony did was basically say we will partially cripple your machine with regard to another feature or features if you do not agree to this then they are on very dodgy ground indeed legally speaking here in brassmonkey land.

[Tigra 07]

Everyone together now...

Bait and Switch!

Bait and Switch!

Bait and Switch!

[Anonymous Coward]

when did Sony advertise the OtherOS?

I've spent sometime looking through old Commercials of the PS3 and I can't find a single commercial that included OtherOS. So how did Sony cheat people by disabling something that they never advertise for?

if it was never advertised as a feature, doesn't that make it as an optional "extra" you got with your device?

P.S. I've asked before and I'll ask again, if it is such an important feature to you, why didn't you try to protect this feature by buying a separate console for your gaming? If you have money to by a PC + PS3 + HDTV, then you have few extra quids to buy another PS3 and protect your development platform from being taken away from you.

[Red Bren]

If Sony lose...

What remedy will Sony be forced to make? A Norwegian-only version of firmware that re-enables the OtherOS option? Can they ensure only Norwegian-bought fat consoles can run that firmware? I doubt it.

Sony should give up and give us all back the functionality we paid for. If not, it would be a great legal precedent ensuring companies cannot remove functionality from a product that was present at the time of sale.

[Anonymous Coward]

Ts & Cs

"You can say what you want in your T&Cs (e.g. I will take a pound of your flesh, and your firstborn), but if those terms are "unfair" to a consumer then they may as well not exist."

It's worse than that (or maybe better....)

If a contract or agreement contains a single unfair clause, the entire contract can be ruled invalid, not just the specific clause.

[Highlander]

Is Norway in a temporal paradox or something?

They're only 20 months late to the party on this one.

This will go nowhere. The term and conditions you agree to every time you connect to PSN include the basic requirements for accessing PSN - up to date firmware. If you are really wedded to your Linux, you don't upgrade your firmware, your console continues to work, you lose nothing except the network service. No games you've purchased cease working except in so far as things that depend on the PSN service will not work. Sure, future games may not work, but that doesn't deprive the consumer of anything they have already paid for. The operator of a network is perfectly within their rights to set the minimum requirements for devices connecting to their service.

The firmware that removes Linux was not applied automatically, nor is it a mandatory update for a PS3 since your PS3 will continue operating 100% as it did before, if you don't update the firmware. It's your choice.

[Anonymous Coward]

That argument doesn't hold up.

If I bought a PS3 it would be on the tacit understanding that I could run games released for the PS3, not just those games that are available on the market at the time I bought it.

Moreover, if, in order to run those games I have to give up a feature that was on the machine when I bought it, then something looks extremely smelly. Actually, it looks like extortion.

I did come close to buying a PS3 because I could run Linux on it and the kids to play games on it. The thing that stopped me? Yup, the CD rootkit fiasco. I'm even less likely to consider Sony kit now. The have a wonderful marketing strategy don't they?

[Ross 7]

Foot. Gun.

What seems to have been overlooked is that taking any kind of punitive action against Sony for removing OtherOS is only going to harm consumers.

Sony were pretty forward looking (for once) in providing OtherOS, but for a variety of reasons (mainly their own poor design) they felt it necessary to remove it. Guess what folks - if they get a load of **** for providing it then taking it away, they aren't going to offer it on any future consoles. Neither is anyone else for that matter. It's far too much grief for so little benefit to the company.

Vilify Sony for piss poor security design (reusing keys? Really?) by all means. However complaining about a freeby like OtherOS is just going to result in no more feebies in the future. Kinda shooting yourself in the foot there.

PS - will the *entire* "I bought it I can do what I want with it" crowd please STFU? Pretty please? Yes, you CAN do what you want with it. Feel free to roll back the update to re-enable OtherOS. Ofc Sony aren't obliged to help you with that - it's left as a challenge to the reader.